THE IRRIGATION AGE. 



147 



Supreme Court Decisions 



Irrigation Cases 



STATE ENGINEER 



The state engineer has no power or authority to inter- 

 fere with vested rights, or to grant a permit for the appro- 

 priation and diversion of water, where the same has already 

 been appropriated and applied to a beneficial use. Youngs 

 v. Regan, Supreme Court of Idaho, 118 Pacific 499. 

 PERMANENT STREAM 



Where through a natural obstruction part of the water 

 of a stream was diverted and flowed in a given manner for 

 a time longer than that fixed by the statute of limitations, 

 the water diverted was a permanent stream. Pacific Live 

 Stock Co. v. Davis, Supreme Court of Oregon, 119 Pacific 

 147. 

 WATER APPURTENANT TO LAND 



A division of a tract of land to which a water right is 

 appurtenant by the sale of a portion thereof, without segre- 

 gating or reserving the water right, works a division of the 

 water right in proportion as the land is divided by the con- 

 veyance. Russell v. Irish, Supreme Court of Idaho, 118 Pa- 

 cific 501. 

 RIPARIAN RIGHTS 



The canal of an irrigation company which has con- 

 demned all the waters of a stream should be treated the 

 same as the stream, as affecting the question whether land 

 of a purchaser from the company on the line of the canal 

 is riparian land. McKenzie \. Benson, Court of Civil Ap- 

 peals of Texas, 140 Southwestern 246. 

 QUALIFICATIONS OF VOTERS IN IRRIGATION DISTRICT 



Section 2 of the act of March 6, 1911 (Sess. Laws 1911, 

 p. 461), wherein it is provided that a holder of land within 

 the district who is a resident of the state is a qualified 

 voter at an election held in the irrigation district, violates 

 the provisions of section 2, art. 6 of the Constitution. Pio- 

 neer. Irr. District v. Walker, Supreme Court of Idaho, 119 

 Pacific 304. 

 QUALIFICATIONS OF VOTERS IN IRRIGATION DISTRICTS 



Section 2 of said act of March 6, 1911 (Laws 1911, p. 

 4611. also violates the provisions of section 1, art. 6, Const., 

 in that it provides that each voter may vote and have his 

 ballot marked according to acreage of land owned by him, 

 and according to the number of inches of water used by 

 him within the district. Pioneer Irr. Dist. v. Walker, Su- 

 preme Court of Idaho, 119 Pacific 304. 

 SURFACE WATER PRIVATE PROPERTY 



The Constitution (section 3, art 15) confers and pro- 

 tecs the right to "divert and appropriate the unappropriated 

 waters of any natural stream to beneficial uses," but does not 

 purport to deal with private waters, such as private ponds, 

 artificial lakes, or wells owned by private persons and formed 

 by collecting and impounding surface water. King v. Cham- 

 b'erlin. Supreme Court of Idaho, 118 Pacific 1099. 

 CLASSIFICATION OF CONSUMERS 



Any classification made by an irrigation company under 

 the provisions of section 3287 of the Revised Codes can in 

 no way affect or control the question of priorities between 

 users, and in no way prohibits or limits any user of water 

 in having the question of priority between users settled and 

 adjudicated in the proper court of the state. Brose v. Di- 

 rectors of Kampa & Meridian Irr. Dist.. Supreme Court of 

 Idaho. 118 Pacific :>04. 

 PRIORITY OF APPROPRIATION 



The amount of water that may be taken by a prior ap- 

 propriator for irrigation depends on the number of acres 

 of irrigable land susceptible of cultivation, the degree of 

 sterility of the premises, the most profitable crops that can 

 be raised 'by artificial application of moisture, and the quan- 

 tity of water necessary to produce the harvest by careful 

 husbandry. Donnellv v. Cuhna, Supreme Court of Oregon, 

 119 Pacific 331. 

 IRRIGATION DISTRICTS 



The irrigation act of 1897 (St. 1897, p. 254), authorizing 

 the creation of irrigation districts, is not unconstitutional, 

 because section 1 authorizes a majority of the holders of 

 title of lands, according to the equalized county assessment 

 roll for the year last preceding, to propose organization, on 



the theory that the apparent owners by the assessment roll 

 may not be the present owners, since the legislature could 

 provide for the formation of districts without giving prop- 

 erty owners any voice. In re Bonds of South San J oaquin 

 Irr. Dist., Supreme Court of California, 119 Pacific 198. 

 WATER COURSE v 



A gulch through which water flows from about March 

 1st until August, being derived from melting snows and 

 springs, constitutes a "water course," waters of which are 

 subject to appropriation. Barman v. Blackmon, Supreme 

 Court of Oregon, 118 Pacific 848. 

 RIPARIAN RIGHTS 



Where a water right is subsequent and inferior to an- 

 other's riparian right, the latter may use all the water re- 

 quired for domestic purposes and for proper irrigation of 

 the land riparian to the stream. Driskill v. Rebbe, Supreme 

 Court of South Dakota, 133 Northwestern 246. 

 WATERS APPROPRIABLE 



Under L. O. L. Section 6673, providing that ditches con- 

 structed to use waste, spring, or seepage waters shall be 

 governed by the same laws relating to priority of right as 

 ditches constructed to use waters of running streams, waters 

 flowing through a gulch, and derived from melting snows 

 and springs, are subject to appropriation. Barman v. Black- 

 man, Supreme Court of Oregon, US Pacific 848. 

 CLASSIFICATION OF CONSUMERS 



If a mistake is made by an irrigation company in making 

 the classification as required by the statute, and a consumer 

 is placed in the wrong classification, he can have such classi- 

 fication corrected in the courts, and he is not compelled to 

 accept the classification made by the ditch company. Brose v. 

 Directors of Nampa 6- Meridian Irrigation District, Su- 

 preme Court of Idaho, 118 Pacific 504. 

 WATER COMMISSIONER 



Comp. St. 1910, Section 801, requires a water commis- 

 sioner, when he regulates a headgate in accordance with 

 adjudged priorities to attach thereto a written notice stating 

 that such headgate has been properly regulated and is wholly 

 under his control, which notice is made legal notice to all 

 parties interested in the distribution of the water of such 

 ditch. Held, that the notice was not objectionable as a taking 

 of property without due process of law in that no hearing 

 of the owner is provided for. Hanip v. State, Supreme Court 

 of Wyoming, 118 Pacific 653. 

 IRRIGATION ACT VALID 



Irrigation Act 1897 (St. 1897, pp. 276, 277), Sections 

 68-72, providing for proceedings to test the validity of irriga- 

 tion district assessments, is not invalid, under Const, art. 4, 

 sec. 24, as being foreign to the title of the act, "An act to 

 provide for the organization and government of irrigation 

 districts and to provide for the acquisition or construction 

 thereby of works for the irrigation of lands embraced within 

 such districts, and also to provide for the distribution of 

 water for irrigation purposes." In re Bonds of South San 

 Joaqnin Irriyation District, Supreme Court of California, 119 

 Pacific 198. 

 BOARD OF CONTROL 



As an incident to its power to adjudicate priorities, the 

 board of control must determine whether one claiming an 

 appropriation for irrigation has sufficient interest in the ditch 

 to be used for conveying the water, and, while its determina- 

 tion may not conclude a subsequent judicial determination of 

 interest or ownership, the water commissioner may act upon 

 such determination of interest in distributing water upon the 

 certificate of appropriation, in the absence of any other lawful 

 determination as to ditch rights or of a record showing the 

 ownership of each interested party made pursuant to Laws 

 1907. c. 86, sees. 22-27, and Comp. St. 1910, sees. 808-812. 

 Hamf v. State, Supreme Court of Wyoming, 118 Pacific 653. 

 WATER CONTRACT 



A contract, in terms granting "all the water now flow- 

 ing or hereafter to flow" from three certain wells on a certain 

 five acres, and covenanting that the water flowing from the 

 wells at the date of the contract measures more than 110,000 

 gallons a day. and that, if the water flowing therefrom shall 

 decrease to less than 105,000 gallons a day, the grantor will, 

 "from the water rising or flowing from or on said five acres, 

 or that can lie developed from said five acres," increase the 

 flow to 110,000 gallons a day, but that he shall not be obliged 

 to furnish more than one-third of all the water that may be 

 flowing on or from said five acres, or that can be developed 

 or obtained therefrom, is not a contract to furnish 110,000 



